Wednesday, March 19, 2003

First, he ought to ask Justice Scalia about the problems ascertaining original intent.

Second, his response to the "unappetizing conclusions" point is wholly inadequate. Cookbook 14th Amendment law (the same subsequent amendment that renders the founders' views on race relations "moot") tells us that the rights which the founders announced in the Bill of Rights as against federal power now apply against the states. Applying this to the First Amendment, as originally understood, would lead to chaos. The First Amendment was meant to protect state-sponsored churches against the possibility of a national-sponsored church. It clearly means "hands off" religious practices and "no compulsion" for religion. How can we apply that to the states in any coherent manner without abandoning its original purposes?

Third, it's worth noting that even Supreme Court justices who otherwise appear to be sympathetic to Cramer's views (as to the application of "original intent" and as to whether "God" in the pledge is constitutional) must retreat to ceremonial deism. They would get laughed out of conference if they offered a string of quotes from founders.

Finally, on an unrelated note, I thought Cramer's post on comparative risks of death was disgusting. In order to "prove" his "courage," Cramer took the death rate for the least costly (in terms of human lives) major war we have ever fought. Before he breaks his arm patting himself on the back, he ought to consider what our servicemen in World Wars I and II, Korea and Vietnam faced.

PRODUCT DILUTION? I'm all for the Volokh Conspiracy adding more conspirators; it makes browsing the web easier. But Eugene might want to rethink his last addition, Clayton Cramer. Messr. Cramer may know a lot about history, and gun history, specifically, but his legal arguments leave a bit to be desired.

Actually, much more than a bit. His "explanation" of why "under God" is consistent with the Constitution reads like an 11th-grade American history report. And it misses the point: whatever interpretation of the First Amendment (and the Establishment Clause in particular) one wishes to adopt today, precedent has been almost completely divorced from the Amendment's history (with the full blessings, I might add, of even the most conservative justices).

I don't have time now (gotta go to work) but will try to elaborate later. In the meantime, if you're interested, ask Eugene he would treat that argument if someone turned it in on a First Amendment exam.

Sunday, March 16, 2003

DICK CHENEY MEETS THE PRESS. Vice President Cheney spoke with Tim Russert this morning. Among the things this so-called foreign policy maven said:

"That [after 9-11] the President has had to come to grips with situations that our allies haven’t had to face [i.e., terrorism.] . . . The rest of the world hasn’t had to come to grips with that, yet." Hello? Our allies have never dealt with terror before? He might want to ask his friend Prime Minister Thatcher about that one. Or the Germans. The Greeks. The Italians. The French. The Russians. The Israelis. The historical ignorance --and the arrogance-- of this statement is stunning. Yes, 9-11 was a far more terrible attack than most of these nations suffered, but most of them have been suffering under the threat of domestic terorrism since the 1970s.

"Consensus of the what the major threats are . . . disappeared at the end of the cold war." Except that it didn’t. Our war on terorrism has almost unanimous support among all nations in the world.

Vice President Cheney described the Bush Doctrine as attributing to any host or sponsor state the terrorist acts of groups based there, and respond accordingly. The irony, of course, is that under that description, Iraq is pratically the only country in the region that doesn't deserve immediate retaliation.

Finally, did Grover Norquist piss the administration off recently? Because today, Vice President Cheney oh-so-casually accused President Reagan as being soft of terrorism.

Friday, March 14, 2003

Toby Stern has a great question on his blog about when justices are obligated to give up continuous dissents. He cites as an example the consistent 4 dissents in the Rehnquist Court's recent line of federalism cases, although the same question could be (and has been) posed about Justice Brennan and Justice Marshall's death penalty dissents after Gregg v. Georgia.

As I wrote Toby, I'm a bit on the edge of reasonable debate when it comes to stare decisis. I think that the whole concept is questionable, and generally don't have a problem with judges dissenting again and again, so long as their dissents are reasoned decisions. (That's my way -- perhaps unfair -- of distinguishing what the current four are doing in 11th Amendment cases from what Justice Brennan and Justice Marshall did for many death penalty cases).

Gary Lawson wrote a great article on this in 1994. The Constitutional Case Against Precedent. (I've only dipped my toe reading in this area, but for one response, see Richard Fallon's essay here).

If I was trying to start from scratch to construct a theory on when judges should follow precedent and when they shouldn't, I suppose I'd spend a lot of time on reliance, i.e., the more constitutional doctrine and policy that rely on the decision in question, the more compelling the reasons someone should have for not giving up and going along. The converse, I think, is also true. The more that related constitutional doctrines and policies, &tc. shift away from the precedent, the less deference it deserves. That's what gets us to Brown, which, of course, we must always.

But that is still a pretty loose standard. I'm not sure how you can tighten it, though, without giving up a lot of discretion (see Brown, Barnette, et al.) that is probably worth keeping.

One thing that I hear a lot from pro-Roe people is the canard that "of the 30-something justices who have considered the decision, only 6 or so have said it's bad law." I think generally this argument is symptomatic of the problems liberals have with creating plausible constitutional theories, but it might be a rough rule of thumb as to the appropriateness of persistant dissents.

WHAT? A POSTING ON RULE 11? Howard was kind enough to point to an interesting case out of the Third Circuit on Rule 11 sanctions.

I don't know enough about the law underlying Rule 11 (and left my copy of the rules at the office so I can't read the advisory notes) to know whether the majority or the dissent have the better of their argument regarding the advisory notes and previous applications.

If the question comes down to objective or subjective reasonableness, and I'm dealing with a clean slate, I think the majority has the better of the argument. We've been round and round and round again these questions in First Amendment law and in interpreting Franks v. Delaware. The pattern seems to be clear -- when enforcing sanctions (whether libel judgements or exclusionary rules) and we are more concerned about overinclusiveness (punishing conduct we shouldn't' be punishing) rather than underinclusiveness (letting slide conduct we should be punishing), we use a subjective standard. This ensures that courts will target only those with bad motives, not the merely incompetent.

In other situations the desirability of protecting the incompetent seems clear; in First Amendment (public figure) cases, the value of protecting editors and reporters outweighs whatever marginal tarnish a public figure gathers; in police affidavit cases, the value of protecting police officers against the onslaught of challenges to warrants makes sense, even if it means sacrificing the privacy-protecting objective standard.

In the case of the courtroom, the due process concerns of the client, not the court, should predominate.

Think of it this way: who is hurt by a sanctionable motion under Rule 11? Is it the opposing party -- no, because by definition when a court applies Rule 11 it has recognized the weaknesses of the underlying motion. Opponents have ways of challenging objectionable filings -- they're called response or reply briefs. They may incur costs more than they would have otherwise, but in the grand scheme of litigation . . .

Rule 11 protects the courts -- their time, their dignity (whatever that means), their ability to administer justice efficiently. As between those prudential concerns and the party's concern to be represented as much as possible, the courts should lose. Their dignity and efficiency aren't worth that much.

Thursday, March 13, 2003

THE SINGLE DUMBEST BILL EVER INTRODUCED IN CONGRESS. I'm sure it has a lot of competition, but I can't conceive of anything more stupid, insulting, unpatriotic, stupid, wasteful, ignorant, and stupid than this. I hope the next time Representative Brown-Waite decides to introduce a bill, she lets it set in her file cabinet for a couple years.

It reminds me of Bob Dole's old line about Newt Gingrich: "Five file cabinets in his office. Four big ones, labeled "Newt's ideas." One small one, labeled "Newt's good ideas." Brown-Waite should see if she could borrow one of the first four.

Wednesday, March 12, 2003

THREE QUICK THINGS on hump day.

1. I think everything Josh Marshall has written over the last few days is worth reading. And rereading. So, why not go do it?

2. This paper that Larry Solum highlights sound very interesting, and I'm looking forward to reading it, but it does raise Simon's First Rule of Constitutional Interpretative Theory: Any theory that relies on capitalizing "We the People" is probably (rebuttably) crazy. See, e.g., this.

3. I hope (assume) Howard is joking. But I think it's a little crass. Maybe it's just me, but I can't find anything funny at all about Texas's killing spree.